After Switzerland Comes Austria
Why the ECtHR could soon grant individual standing in a climate mitigation case for the first time
The KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR) has been the subject of intense debate for several weeks. One focus was on the question of standing, i.e., who can bring a lawsuit connected to climate change and human rights before the ECtHR.
However, less attention has been paid to the question of the impact of the judgment on currently pending climate change cases before the ECtHR. This blog post sheds light on “climate change case number four”, a case against Austria primarily challenging the shortcomings of the Austrian Climate Protection Act.
In Müllner vs Austria, Mex M., who suffers from multiple sclerosis and whose health condition worsens with rising temperatures, will have to overcome the high threshold for individuals to qualify as victims in climate change cases. “If Mex is not particularly affected by the climate crisis, then nobody is,” says his lawyer Michaela Krömer. Chances are indeed promising for Mex M., mainly because of the direct correlation between the temperature rise and his health, underpinned by vast scientific evidence and a lack of reasonable personal adaptation measures. The even more important question, however, is how the ECtHR will address the substance of the case. In this blog post, I argue that the ECtHR should classify the shortcomings in the Austrian Climate Protection Act as a violation of the European Convention on Human Rights (ECHR).
Lack of legal remedies to challenge the Climate Protection Act
Under Austrian law, there is no remedy for legislative inactivity. Laws can be challenged before the Austrian Constitutional Court through an individual application only under three strict conditions: The law must (i) directly affect the applicant’s legal position, (ii) take effect without a judgment or decision, and (iii) other means of challenging the law must be unreasonable (Article 140 para. 1 of the Federal Constitutional Act).
Due to these conditions, shortcomings of the Austrian Climate Protection Act cannot be effectively challenged before the Constitutional Court. This is why the “first climate action” before this Court did not address the Climate Protection Act itself. Instead, the applicants submitted an individual application for the repeal of specific provisions (of the Value Added Tax Act 1994 and the Mineral Oil Tax Act 1995) that favored air transport over rail transport for tax purposes. These tax concessions would cause people to choose air travel over rail, thereby encouraging climate-damaging behavior. The applicants argued that this violated their rights under Articles 2 and 8 of the ECHR, which have constitutional status in Austria.
However, the Constitutional Court ruled that the disputed laws did not interfere with the legal sphere of the applicants. It was not sufficient for the Court that the applicants did not (want to) use air carriers for cross-border passenger transport services, but those of rail services (E. 3.2.2.).
The Case of Mex M.
Lawyer Michaela Krömer has taken one of the individual applicants from the “first climate action” before the Austrian Constitutional Court to the ECtHR. Mex M. suffers from a special form of multiple sclerosis, the so-called Uhthoff phenomenon, where rising temperatures directly impair his mobility. The main argument for Mex M.’s victim status is that his rights under Articles 2 and 8 ECHR have already been specifically violated, particularly since he becomes confined to a wheelchair at 25°C and cannot move without assistance at 30°C. The complaint to the ECtHR is extensively supported by medical and scientific reports documenting his health status and deterioration, as well as the significantly lower life expectancy in Austria if the average number of days with temperatures exceeding 25°C continues to rise.
As a reminder, in the KlimaSeniorinnen case, the ECtHR established that to qualify as a victim under Article 34 ECHR, individual applicants must (i) be subject to a high intensity of exposure to the adverse effects of climate change, and (ii) face a pressing need for individual protection due to the absence or inadequacy of reasonable measures to reduce harm.
The applicants in that case failed to satisfy these requirements. The ECtHR found that they were not in any critical medical condition. For instance, no direct relationship was established between the temperature rise and the applicants’ asthma (para. 534).
“It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country. It should also be reiterated that victim status in relation to future risk is only exceptionally admitted by the Court and the individual applicants have failed to demonstrate that such exceptional circumstances exist in their regard.” (para. 533)
Given the robust and promising evidence in Mex M.’s case, and the direct correlation between the deterioration of his health (including the decrease of his life expectancy) and rising temperatures, these requirements could indeed be met. The question of personal adaptation also supports Mex M.’s claim. It seems inadequate and incompatible with the essence of Article 8 ECHR if the ECtHR were to require Mex M. to relocate from Austria – away from his familiar environment and support network – to a country with lower average temperatures.
The substance: Shortcomings of the Austrian Climate Protection Act
Regarding the substance of the case, it should be noted that the ECtHR has made it clear in KlimaSeniorinnen that Article 8 of the ECHR “requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades” (para. 548). To comply with their obligation under Article 8 ECHR to mitigate climate change, Contracting States need to adopt general measures specifying a timely target for achieving carbon neutrality and define the overall remaining carbon budget for the same time frame (or another equivalent method of quantifying future GHG emissions). The ECtHR also requires that Contracting States provide evidence showing whether they have duly complied, or are in the process of complying, with the respective targets and that the targets are regularly updated (para. 550).
The Austrian Climate Protection Act does not meet these requirements. It does not enshrine the achievement of climate neutrality by 2040 (proclaimed in the current Austrian government’s program), and there is no other binding enshrinement of this goal under Austrian law. Furthermore, the Act has not been updated; it only defines annual emission ceilings until 2020, and the targets for 2017 to 2020 were not adapted to EU standards. Notably, Austria only met the Kyoto Protocol targets between 2013 and 2020 due to emission credits from earlier years and short-term emission drops during the COVID-19 pandemic. Further shortcomings of the Austrian Climate Protection Act were identified in a report by Eva Schulev-Steindl, Miriam Hofer, and Lena Franke. These include a lack of accountability and control mechanisms, regular monitoring, and concrete action plans. Consequently, Daniel Ennöckl considers the structure of the Austrian Climate Protection Act to be inadequate under international law. This perspective seems even more valid now after the KlimaSeniorinnen judgement of the ECtHR. Even if the ECtHR did not strictly apply all the criteria it has outlined, it is apparent that Austria would fail to meet the requirements to comply with Article 8 ECHR.
What distinguishes Austria from Switzerland is that – unlike Switzerland – Austria is bound by EU climate targets. Whether and how the ECtHR would make a differentiation in this regard remains an open and crucial question.
Conclusion
If the ECtHR were to affirm the requirements for victim status in the currently pending case of Mex M. – in contrast to the individual applicants in the KlimaSeniorinnen case – and proceed to a substantive examination, it would mark the first instance of the ECtHR granting standing to an individual in a climate mitigation case. It seems likely that the ECtHR would then find that Austria violated Article 13 ECHR (or Article 6 ECHR) in addition to a violation of Article 8 ECHR, as was the case in Switzerland. Consequently, Austria would be required to adopt national climate procedures, introduce complaint mechanisms, and develop a binding roadmap for achieving climate targets, including sanction mechanisms. While the ECtHR would probably leave the selection of specific measures to the Austrian legislature, it is evident that immediate action is necessary to ensure compliance with Article 8 ECHR.
After the lecture of the complaint and the evidences behind of it it seems to be “quite comfortable” for the defendant Austria. It follows the narrative “CO2e emissions = global warming = rising temperatures affecting the plaintiff’s health”. No doubt about that but it is only the top of an iceberg. The real case is much deeper, much older and much more criminal.
The combustion process of fossil fuels such as Diesel, Gasoline or aircraft Kerosine
– creates GHG emissions relevant for climate change by radiation inbalance inside the atmosphere.
– transforms all the chemical bound energy into thermal energy. By the physical basic law of energy conservation valid on this planet it remains into this final form and delivers an accumulating factor for global warming. Already in 1941, the german climatologist Hermann Flohn (later one of the driving forces to establish the IPCC) described this essential risk in his groundbraking publication “Human activity as a climate factor”.
– creates SVHC particle emissions (substances of very high concern) such as PAHs, Benzene, Dioxines, Furanes with the soot and toxic gases. By the scientific counselors of the german government the german government declared these groups of SVHC emissions of the traffic sector (including tire and brake wear) responsible for 80% of premature deaths by air pollution in the 1970’s. In 1979, the german government made a target statement that these SVHC pollutants must be reduced by 99% until 2020 to tackle their massive impact to public health but absolutely failed to deal with that issue until today. Instead, they “evaporized” all those SVHC out of the tailpipe emission control laws and standards to protect the german car industry. Today, with reference to WHO data Europe suffers approx. 700.000 premature deaths by air pollution p.a. which means approx. 1.500 victims per day.
By the Product Safety Act and the Hazardous Substances Ordinance a hazardous liquid like fuel must come with a MSDS (material safety data sheet). This MSDS must include all risks for the environment, the climate, public health and worker’s safety coming by “the usual and predictable use” of a product. For fuel products this “usual and predictable use” is to run piston engines and jet turbines with it. So the MSDS must include all the risk factors and substances by the combustion process mentioned ahead.
Exactly the opposite is the case! The fuel cartel runs a conspirative cartel of silence regarding all these emissions and their immense impact to nature and public health. Their fraudulent MSDS deliver “an overflow of useless information” that only suggests the fulfillment of the Product Safety Act but all the real risk factors are missing completely and in common. This makes the whole business activity with fuels at the pump or Kerosine at the airports a completely illegal act while wreaking havoc to the environment, climate, public and workers health since decades.
The anti-cartel authorities and other relevant governmental authorities of Austria are informed about the cartel of silence, their conspiracy by fraudulent MSDS, their illegal business activity and the massive impact to health and life. But on advise by a “Ministerialdirigent” they refused to deal with this extremely criminal case and protected the cartel activities instead.
The reason and motivation is quite simple. Fuel taxes are one of the biggest sources for taxes! This is the reason why the Austrian government runs a system of organized governmental failure by all responsible governmental authorities and ministries and protects the fuel mafia instead. In common they plunder the taxpayer’s and fuel customer’s money with illegal fuels.
This big tax income source is also the reason why the Austrian government permanently failes to fulfill the EU climate targets.
In the case of Mex M. vs Austria there is a good chance that all the “evaporized” SVHC are the reason for his MS disease when we are talking about the most hazardous substances the combustion process of fossil fuels and oil chemistry can create. And also the thermal waste energy by road and air traffic is a big factor to drive climate change, especially when the only existing “heat exchanger” of this planet is damaged by GHGs.
Imagine, alone in Germany we got 40 million “rolling fireplaces” on the road transforming 200 million liters of fuel into thermal energy each day. These fires are invisible when they burn under a hood inside the engine but their thermal energy remains inside the biosphere by the physical basic law of energy conservation as if a single open fire by 200 million liters of fuel would be burning every day since many decades.
The EU governments and the EU commission itself greenwashed all emissions of the combustion process and framed it down to the CO2 narrative against better knowledge. The reason is the massive tax income for the national households.
The budget of 750 billion € for the whole “Green Deal” is a macabre joke when alone the cost by air pollution eat the same budget within a single year (EU-Counsel of Auditors). It is a smokescreen to cover the real human and monetary disaster the fiscal interests of the EU governments have created.
Compared to GHG emissions and global warming the SVHC emissions and their impact to public health would deliver a much harder legal “punch” at the courts. Without an Ecocide Bill the climate is no legal person yet what makes the climate lawsuits so complicated. But the protection of human life and health is one of our highest legal values in all our legal systems. And the medical evidences regarding SVHC and their impact to human life and health are much more evident and older compared to GHG and climate change. The protection of life and health is a main governmental duty in all constitutional laws and a human right.
Year by year 700.000 people in Europe die a premature death by air pollution and their fundamental human right to life becomes violated to create tax income in conspiracy with criminal cartels. Simply download the MSDS of the fuel cartel and you can easily proof by yourself that all the accusations mentioned ahead are right. These are “fake MSDS”.
The complaints in this matter are placed at the relevant UN authorities yet.
The problem in our legal system is that lawyers often have a “tunnel vision” and a lack of basic physical, chemical and toxicological knowledge. Or that they believe governments would act in favor of their citizen. They definitely don’t when it counts to greenwash the disastrous results inside the climate, the environment and public health by decades of organized governmental failure to create taxes with fossil fuels and piston engines.
The SVHC complex will become the next big hammer at international courts.